Re the Governor of Western Australia;
[2007] WASC 228
•10 SEPTEMBER 2007
RE THE GOVERNOR OF WESTERN AUSTRALIA; EX PARTE KEATING [2007] WASC 228
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASC 228 | |
| Case No: | CIV:1822/2007 | 10 SEPTEMBER 2007 | |
| Coram: | EM HEENAN J | 10/09/07 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | OISIN GEOFFREY KEATING |
Catchwords: | Vexatious litigant Application for leave to commence proceedings No arguable cause of action shown Proposed proceedings also vexatious |
Legislation: | Rules of the Supreme Court 1971 (WA) Vexatious Proceedings Restriction Act 2002 (WA) |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
OISIN GEOFFREY KEATING
Applicant
Catchwords:
Vexatious litigant - Application for leave to commence proceedings - No arguable cause of action shown - Proposed proceedings also vexatious
Legislation:
Rules of the Supreme Court 1971 (WA)
Vexatious Proceedings Restriction Act 2002 (WA)
Result:
Application dismissed
(Page 2)
Category: B
Representation:
Counsel:
Applicant : No appearance
Solicitors:
Applicant : No appearance
Case(s) referred to in judgment(s):
Nil
(Page 3)
1 EM HEENAN J: This is an application by originating motion dated 15 August 2007 for leave to be granted by the Full Court for the applicant to sue for damages the Governor of Western Australia and the State of Western Australia. The proposed grounds are that this court, by the late Master Adams, in 1994 dismissed an action (No 1986 of 1992) brought by the applicant, Oisin Geoffrey Keating, against Dr Samuel John Piers Woods (first defendant) and the Minister for Health for Western Australia (second defendant) when, so the applicant alleges, Master Adams had no jurisdiction to do so; and, that the Western Australian Police Commissioner refused to investigate Dr Samuel John Piers Woods, a medical practitioner, for attempting to murder the applicant in Bunbury Regional Hospital in April 1976 by, so it is alleged, maliciously denying the applicant medical intervention for two and a half days after his cerebellar brain tumour caused hydrocephalus totally to collapse his cerebral ventricles.
2 The application is made under s 6(1)(a) of the Vexatious Proceedings Restriction Act 2002 (WA) and is said to be supported by an affidavit of Mr Keating sworn 15 August 2007 and filed in the court that same day. The application is necessary because Mr Keating has previously been declared a vexatious litigant and, therefore, by s 5 and s 6 of the Vexatious Proceedings Restriction Act, may not commence further proceedings in this court without the leave of a judge.
3 By s 6(1) of that Act, an application for leave to proceed must be made to a court (or a judge of that court) or tribunal and is to be accompanied by an affidavit in support. The court or tribunal to which the application for leave is made may dismiss the application even if the applicant does not appear at the hearing of the application (s 6(2)), as is the case with Mr Keating today. Section 6(3) provides that:
[T]he affidavit accompanying the application for leave is to list all the occasions on which the applicant has made an application for leave under [s 6(1) of the Act] and to disclose all facts material to the application, whether supporting or adverse to the application, that are known to the applicant.
4 By s 6(5), Parliament has directed that:
'The court or tribunal is to dismiss the application for leave if it considers that -
(a) the affidavit does not disclose everything required by subsection (3) to be disclosed;
(Page 4)
- (b) the proceedings are vexatious proceedings; or
(c) there is no prima facie ground for the proceedings.
- By s 6(6) it is directed that:
Before the court or tribunal grants an application for leave it is to -
(a) order that a copy of the application and accompanying affidavit be served on -
(i) the person against whom the proceedings are to be instituted;
(ii) any person who made an application under section 4(2)(c) in relation to the applicant; and
(iii) the Attorney General;
and
(b) give those persons an opportunity to oppose the application for leave.
Furthermore, by s 6(7):
Leave is not to be granted unless the court or tribunal is satisfied that -
(a) the proceedings are not vexatious proceedings; and
(b) there is a prima face ground for the proceedings.
Section 6(8) provides that:
The applicant and the persons referred to in subsection (6)(a) are to be given an opportunity to be heard at the hearing of the application for leave.
Section 6(9) provides that:
At the hearing of the application for leave, the court or tribunal may receive as evidence any record of evidence given or affidavit filed in connection with an application for leave mentioned in subsection (3).
For present purposes, the final subsection, s 6(10), provides that:
The court or tribunal may dispose of the application for leave by -
(a) dismissing the application; or
(b) granting leave to institute the proceedings, subject to such conditions as the court or tribunal thinks fit.
(Page 5)
5 In the present case, Mr Keating, by his affidavit of 15 August 2007, deposes to the events leading to his hospitalisation in Bunbury in April 1976. He then deposes to his belief as to what occurred in the hospital and recites that in 1992 he commenced an action (No 1986 of 1992), which has already been mentioned, and that in 1994 that action was dismissed by the late Master Adams on the basis that it was statute barred.
6 The affidavit alleges that the master had no jurisdiction to do so under O 60 of the Rules of the Supreme Court 1971 (WA) (RSC) without the applicant's consent. There are no submissions to support that contention and it is unnecessary for me to say more than merely observe that a master, on an application properly brought before him or her, does have the jurisdiction to dismiss proceedings if no reasonable cause of action can arguably be shown.
7 The affidavit goes on to depose that for about 12 years the applicant wrote repeatedly to the Commissioner for Police, asking for the alleged attempted murder said to have been committed in Bunbury Regional Hospital by Dr Woods to be investigated, but that the Commissioner of Police refused to correspond and that an investigation has not taken place. It also goes on to allege that for about 12 years the applicant wrote repeatedly to the Governor complaining of the alleged conduct of Dr Woods and the absence of a murder investigation.
8 The affidavit then says that in 1994 the applicant commenced proceedings in the High Court of Australia for special leave to appeal in the action against Dr Woods and the Minister for Health. That was an application for leave to appeal from the decision dismissing the action (No 1986 of 1992) which I have already mentioned. The applicant says that on that special leave application he alleged that this court had refused to hear the action. He then explains that the High Court refused to hear the application for special leave. Again, there was no evidence to support that that was the case.
9 The applicant then deposes that between 1996 and 2002 he was diagnosed in both Graylands Hospital and Fremantle Hospital's Alma Street Centre to be suffering from chronic paranoid delusional disorder.
10 The applicant appends to the affidavit copies of the statement of claim in the action (No 1986 of 1992), and a copy of the reasons for decision of Master Adams for dismissing the application. From those reasons, it is apparent that the application was heard on 26 April 1994, that there was no appearance for Mr Keating, as plaintiff, but counsel
(Page 6)
- appeared for Dr Woods, and separate counsel appeared for the second defendant, the Minister for Health. Master Adams gave detailed reasons explaining that he had before him an application to strike out the statement of claim and to dismiss the action on the grounds that no reasonable cause of action was disclosed or that the action was frivolous or vexatious. The first defendant, Dr Woods, also relied on the ground that the statement of claim was an abuse of process.
11 It is unnecessary to go into the reasons for decision of Master Adams because they already form part of the permanent record of this court, but they show that the result was a considered judgment made within the established jurisdiction of the master.
12 Mr Keating also annexes to his affidavit a copy of RSC O 60 dealing with the jurisdiction and powers of a master. That is unnecessary as it is part of the laws of this State of which the court must take notice.
13 The applicant also exhibits a copy of a letter which he addressed to the Director of Mental Health Services on 19 February 1984 requesting a medical report about the damage caused to him by his increasing intra-cerebellar pressure. He exhibits a copy of a letter by Dr Faulkner, a senior consultant psychiatrist in West Perth, addressed to Dr Bell, dated 28 February 1984, made in response to his letter to the Director of Mental Health Services. In that letter, Dr Faulkner explains that Mr Keating had a cystic astrocytoma removed from his left cerebellar hemisphere in April 1976 and that, since then, had a series of adjustment and vocational problems and also that premorbidly he was of mildly schizoid personality and was somewhat isolated.
14 The applicant had been treated by Dr Faulkner for over four years for reactive depression. One of the problems preoccupying him during that time was resentment towards his local doctor for alleged failure to diagnose his tumour earlier. He has been left with learning difficulties and other disabilities. Dr Faulkner concluded his report by saying that Mr Keating was welcome to come and discuss these test results and problems with him because there was some misunderstanding and he was offered an appointment card.
15 The applicant also appends to his affidavit what he refers to as 'a bogus medical report', being a further report by Dr Faulkner of 12 March 1984 addressed 'To Whom It May Concern'. This report repeats in substance the account of his earlier treatment that I have just described.
(Page 7)
16 The applicant then exhibits a report from Dr Michael Lee, a neurosurgeon of St John of God Medical Centre, dated 23 May 1984, to Dr Isherwood, which also refers to Mr Keating's concern about negligence by Dr Woods, and indicating that Mr Keating felt that Dr Lee's report was prejudicial. It is evident that this concern against Dr Woods was a matter of very great significance to Mr Keating during the mid-1980s and afterwards.
17 Mr Keating then refers to and annexures a copy of a report from Royal Perth Hospital. That is a case summary note by a resident medical officer in the Department of Neurosurgery, only part of which is reproduced. It notes the following:
[A CAT scan] showed an area of increased density in the vicinity of the left cerebellar hemisphere associated with a fairly large cystic cavity. This does not show any evidence of contrast enhancement. It is difficult to say whether the finding is simply the surgical bed (suspected to be the case) or whether there is true cyst formation at the operative site. Certainly the shunt is working satisfactorily as the ventricles are almost totally collapsed.
18 Mr Keating then attaches a copy of a psychometric test report of the Head Injury Unit of the Health Department written by a psychologist, dated 21 March 1991. It reports on him as being profoundly amnesiac. The report certainly does make reference to severe memory difficulties, but refers to a series of other disabilities including a history of depressive episodes and underlying anger regarding the delay in the treatment of his tumour some 15 years before.
19 Then Mr Keating annexes a report of the late Dr Canning, dated 28 May 1991, written in support of an application for an invalid pension. The applicant confirms that an invalid pension was granted to him on 28 March 1991. In this report Mr Keating says that Dr Canning stated that he suffered from, among other things, recurring situational depressive psychosis. The applicant complains that Dr Canning did not state that his cerebral ventricles had totally collapsed, rather that they had dilated.
20 The report by Dr Canning runs to a number of pages and follows the format required by the Department of Social Security at the time. It refers to Mr Keating's surgical treatment as being that of 'cystic astrocytoma of the left cerebellar hemisphere and symmetrical dilatation of [the] third and lateral ventricles'. It says that the astrocytoma was removed and followed by post-operative irradiation; that a ventriculo-peritoneal shunt was
(Page 8)
- inserted; and, that 'anxiety neurosis was superimposed with recurrent episodes of situational depressive psychosis'.
21 Dr Canning mentioned that Mr Keating had been consulted since 29 November 1989 on 25 separate occasions. The majority were somewhere between 45 and 90 minutes duration. He noted that the applicant regularly attended the Fremantle clinic and the mental health division of the Health Department of Western Australia. The results of investigations were attached. The treatment history was repeated. In the passage, 'Other Remarks', Dr Canning then said that there was 'an immense amount of rehabilitation endeavour being put into [Mr Keating's] case' and that he believed that the resources of the public and private sector had been exhausted and that there was no prospect of this patient being able to enter the workforce and that he was thought to be unemployable. Dr Canning recommended that Mr Keating be placed on an invalid pension, to be reviewed in three to five years' time, and went on to indicate some prospects where there might be some hope for improvement in his condition.
22 In his affidavit, Mr Keating deposes that in 2000, Anderson J of this court declared him to be a vexatious litigant following an application to that effect by the Attorney-General. He complains that that determination was made without him being heard because he was then, as a result of a community treatment order, taking the anti-psychotic drug Olanzapine for a purported chronic paranoid delusional disorder.
23 Mr Keating then goes on to say that he swears his present affidavit in support of an application for leave to commence legal proceedings in this court against the Governor and the State of Western Australia for general and exemplary damages. The proposed grounds, as set out above, are that this court, by Master Adams, without jurisdiction (relating to the jurisdiction of masters), dismissed as statute barred, the action which has already been mentioned (No 1986 of 1992), against Dr Woods and against the Minister for Health; and, that the West Australian Commissioner of Police refused to investigate the allegations of attempted murder by Dr Woods.
24 Finally, at [22] of the affidavit, Mr Keating deposes that he has made approximately ten applications, under the Vexatious Proceedings Restriction Act, for leave to commence proceedings.
25 It seems to me that this affidavit does not comply with s 6(3) of the Vexatious Proceedings Restriction Act, which requires the applicant 'to
(Page 9)
- disclose all facts material to the application, whether supporting or adverse to the application, that are known to the applicant'. It goes no further than an attempt to revive litigation which has already been dismissed and from which an application for special leave to appeal was refused. That in itself would be a sufficient ground to dismiss the application, but there are other reasons as well. From what I have described, it is apparent that no new material has been put before the court which could suggest in any way that there is any kind of arguable, let alone viable, cause of action against any of the defendants whom Mr Keating wishes to sue. As a result the proceedings must be regarded as vexatious. That being the case, the application for leave to commence the proceedings should be dismissed.
26 It also appears to be the case that tragically, and obviously due to no fault of his own - but because of the consequences of an illness which was life threatening and required very considerable invasive surgery, which itself inevitably had an effect upon Mr Keating's welfare back in 1976 - the applicant has been left with a series of illnesses and disabilities with occasional psychotic episodes and neuroses.
27 All this is said without any criticism or disapproval of Mr Keating. He is a person for whom great sympathy needs to be exercised. But I am satisfied that there is no reason whatever to justify the grant of leave to institute proceedings. All the indications are that the essential requirements for the grant of leave under s 6 of the Vexatious Proceedings Restriction Act have not been put forward. The application will therefore be dismissed.
28 I will direct that a copy of the reasons for decision which I have just given, be prepared and despatched to Mr Keating by post. There will be no order as to costs.
2
0
2